Interestingly, it was The Irish Times that first got wind of the news that Vivien Reding, European Commission Vice-President responsible for Justice, Fundamental Rights and Citizenship, will announce a new mechanism to make it easier for the EU to deal with countries whose governments repeatedly abuse its judicial and legal framework and thereby threaten the rule of law in member states of the European Union. It is no secret that one of these countries is Hungary; the other is Romania. In Hungary, the Orbán government threatened the independence of the courts in addition to limiting freedom of expression. In Romania, Victor Ponta wanted to abolish the Constitutional Court altogether.
We knew, at least since José Manuel Barroso’s “state of the union” speech last fall, that the Commission was working on some kind of mechanism that would close the gap between repeated infringement procedures and the invocation of Article 7 of the Treaty of the European Union. Article 7 states that in case of serious and persistent breach “the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council.” This is the most powerful weapon the EU has in its arsenal, but it has never been invoked because it is considered to be far too harsh. Leaders of the “rogue states” know that they will never face the threat inherent in Article 7. Accordingly, EU officials have pointed out that they either have to break the taboo concerning Article 7 or have to come up with alternative measures. Vivien Reding in the presence of President Barroso and Cecilia Malmström, Commissioner of Home Affairs, announced such an “alternative measure,” a mechanism that would close the gap between the lengthy and most of the time ineffectual infringement proceedings and the draconian but never used Article 7.
At first glance, the measures outlined by Vivien Reding seemed toothless to me. I was especially disappointed when I read about the “dialogue” the Commission will conduct with the government of any rogue member state. I recalled the endless dialogues between Brussels and Viktor Orbán that led nowhere while the Hungarian prime minister danced his peacock dance. But then I discovered a sentence that might give us hope. Reding said that “the Commission, as guardian of the EU treaties, also had to become the guardian of the rule of law in the Union.” They envisage an extension of the Commission’s competence.
The Commission will not deal with individual cases or miscarriages of justice, only with “systemic threats” to EU values. That is, a distinction will be drawn between individual infringements that don’t threaten the fundamental democratic structure of the state and grave, all-embracing changes that affect the entire body politic. As we know, in the last four years the Hungarian government fundamentally changed the whole “system.” In fact, Orbán only a few weeks ago admitted that the system that exists now is fundamentally different from what Hungary had prior to 2010. Indeed. Then Hungary was a democracy. Today it is not.
How does the European Commission propose to deal with systemic threats to democracy? As a first step, it will collect evidence of “a systemic threat to the rule of law.” If such an assessment is made, “it will initiate a dialogue” by sending a “rule of law opinion” to the government in question. At that point the member state will have an opportunity to respond. In the second stage, “unless the matter has already been resolved, the Commission issues a ‘rule of law recommendation’ to the country concerned.” At this point the country will be given a fixed length of time in which to remedy the situation. These recommendations, unlike the “rule of law opinions,” will be made public. If the issue is not satisfactorily resolved, “the Commission can resort to one of the mechanisms set out in Article 7 of the EU treaty.” Whether this new three-tiered system ends up being as ineffectual as the former procedure remains to be seen.
The Hungarian media is in no hurry to report on this particular bit of news. Only two Internet sites published something on Vivien Reding’s announcement: Index and napi.hu. Both point out that the announcement is the consequence of the European Union’s endless and mostly fruitless struggles with Viktor Orbán’s systemic attack on the rule of law. Index specifically mentions Rui Tavares’s suggestion that the EU establish a new supervisory Copenhagen mechanism assessing member states’ compliance with the rule of law, fundamental rights and democracy. As you can see, the Copenhagen suggestion was not included in the proposal. Instead, the Commission itself assumed the role. Whether this is a better solution or not, I cannot determine.
In any case, the European Union made the first move. Of course, it will be many months before the new mechanism is in place, but I think that this time the Commission means business. Reding even announced “the need for an EU Minister for Justice taking the helm at a central level, giving EU justice policy a face and, of course, held accountable to the European parliament.”
Unfortunately, the European Union as it functions today is not a viable entity. Just as the Articles of Confederation turned out to be unworkable and had to be replaced by the Constitution of the United States of America. The European Union should realize that without a stronger framework, it will remain a toothless giant bogged down in intra-state struggles and endless bureaucratic wranglings.